New York Ethics Act Constitutional

The New York Court of Appeals

The issue on this appeal is whether, on its face, the Ethics Commission Reform Act of 2022 unconstitutionally vests the State Commission on Ethics and Lobbying in Government with executive power. Plaintiff’s principal argument is that because the Commission exercises executive power, the Governor must have power to appoint and remove the Commissioners. In New York, however, the Legislature—not the Governor— may ordinarily define the terms on which non-constitutional state officers may be appointed and removed. Moreover, the Legislature structured the Commission to address a narrow but crucial gap arising from the inherent disincentive for the Executive Branch to investigate and discipline itself, which has serious consequences for public confidence in government. The Act does not displace the Executive Branch to accomplish that goal; instead, it confers upon an independent agency power to enforce a narrow set of laws, thus mitigating the unique danger of self-regulation. The Act addresses a threat to the legitimacy of government itself with an extraordinary response. While the Act extends very close to the boundary of permissible legislation, it is not “intrinsically a constitutional affront to the separation of powers doctrine” (Cohen v State, 94 NY2d 1, 15 [1999]). We therefore conclude that the Act is not unconstitutional in every conceivable application.

Plaintiff’s secondary arguments are likewise unavailing. The Commission’s placement within the Department of State does not violate Article V of the State Constitution. The Court has previously recognized the propriety of independence from the departmental head where necessary to achieve the purposes of a new entity and the Commission falls squarely within that precedent. And, despite what plaintiff contends, the Commission’s power to investigate the Governor and possibly impose a fine does not interfere with the Legislature’s impeachment power. Accordingly, we conclude that plaintiff has not carried his burden and reverse the order of the Appellate Division. 

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“designate the chair[person] of the commission,” who held that position at the Governor’s pleasure (id. § 94 [4]).

Early in its establishment and throughout its tenure, JCOPE was criticized for its lack of independence and ineffectiveness. Good-government advocates argued that JCOPE suffered fundamental structural deficiencies. They noted the deleterious effects of what was commonly called the “special vote” or “minority veto,” which limited JCOPE’s ability to investigate certain officials (see e.g. Danny Hakim & Thomas Kaplan, Though Hailed, Albany Ethics Deal Is Seen as Having Weaknesses, NY Times, June 6, 2011, § A at 24). For example, under one of the “special vote” provisions, when a JCOPE member sought to investigate a statewide elected official or a direct appointee of such an official, JCOPE’s members had to approve the action by a majority, including two of the Governor’s three appointees (see former Executive Law § 94 [13] [a]). This meant that two of the Governor’s politically aligned appointees could block an investigation of the Governor, even if the remaining 12 members voted to investigate. An analogous provision restricted investigations into legislative officials unless at least two members who voted to authorize the investigation were appointed by a legislative leader from the same party as the subject of the investigation (see id.). Observers also raised concerns about the appointments process and individual members’ independence, including the Governor’s authority to appoint the Chair, the appearance of appointments based on political relationships rather than experience and ability, and removal by the appointing official based on easily manipulated grounds (see e.g. Mike Vilensky & Josh Dawsey, Ethics Panel under Fire, Wall St J, Jan. 31, 2015, § A at 15). These criticisms gained purchase as cases of corruption and misuse of power continued to surface, leading to resignations and criminal prosecutions while JCOPE remained on the sidelines.

(Mike Frisch)